105 P. 709 | Or. | 1909
Lead Opinion
Opinion by
It- is maintained by plaintiff’s counsel that' the law in force when the order was confirmed did not authorize a regulation of fares in consequence of discrimination against any locality, but only when a difference in charges was made to passengers for like and contemporaneous service, and, such being the case, an error was committed in rendering the decree herein.
“The term ‘railroad’ as used herein shall mean and embrace all corporations * * that now, or may hereafter, own, operate by * * electric * * power, manage or control, any * * interurban railroad * * as»a common carrier in this State.” Laws 1907, p. 70, c. 53, § 11.
“Upon complaint of any * * municipal organization, that any of the * * fares, * * are in any respect unreasonable or unjustly discriminatory, * * the Commission may notify the railroad complained of that complaint has been made, and ten days after such notice has been given the Commission may proceed to investigate the same.
* * If upon such investigation the * * fares, * * complained of shall be found to be unreasonable or unjustly discriminatory, * * the Commission shall have power to fix and order substituted therefor such * * fares, * * as it shall have determined to be just and reasonable and which shall be charged, imposed and followed in the future.” Id. §28.
“Whenever, upon an investigation made under the provisions of this act, the Commission shall find any existing * * fares, * * are unreasonable or unjustly discrimina*474 tory, * * it shall determine and by order fix a reasonable * * fare * * to be imposed, observed, and followed in the future in lieu of that found to be unreasonable or unjustly discriminatory.” Id. § 30.
“It shall be unlawful for any railroad to demand, charge, collect or receive from any person, firm or corporation a less compensation for * * any service rendered or to be rendered by said railroad, in consideration of said person, firm or corporation furnishing any part of the facilities incident thereto.” Id. § 48.
“If any railroad shall make or give any undue or unreasonable preference or advantage to any particular person, firm, or corporation, or shall subject any particular person, firm, or corporation, * * „o any undue or unreasonable prejudice or disadvantage in any respect whatsoever, such railroad shall be .deemed guilty of unjust discrimination.” Id. § 49.
“The provisions of this'act shall be liberally construed with a view to the public welfare, efficient transportation facilities, and substantial justice between * * passengers and railroads.” Id. § 59.
“The duties and liabilities of the railroads defined in Section 11 of this act, shall be the same as are prescribed by the common law, and the remedies against them the’ same, except where otherwise provided by the constitution or statutes' of this State, and the provisions of this act are cumulative thereto.” Id. § 61.
After the decree herein was rendered a statute was enacted making the provisions of the railroad commission law applicable to any locality. Laws 1909, p. 158, c. 97. It might seem that the latter law was a legislative interpretation that the original-act did not interdict the collection of fares that were unreasonable or unjustly discriminatory as to a locality. “The enactments of any specific provisions on a particular subject,” says a text-writer, “are not to be regarded as conclusive declarations that the law was different before.” End. Int. Stat. § 374. At common law, as the carrier deals with individuals, they alone can prefer charges for a wrongful discrimination. Beale and Wyman" R. R. Rate Reg. § 831. These
The rules which derive their authority from the judgments and decrees of courts, recognizing and enforcing the usages and customs of immemorial antiquity, having by Section 61 of the railroad commission act, been made expressly applicable to the regulation of railroads of Oregon. Do the principles of the common law afford a remedy for the correction of charges made by a common carrier, where they are in any respect unjustly discriminatory as to a locality, when the original law under consideration (Section 28) authorizes a complaint thereof to be made by a municipal organization? The doctrine has been asserted that by the ancient law a carrier of chattels for any person, though he was obliged to transport, for a reasonable consideration, all proper goods in the order in which they were received, and that when the charge exacted therefor did not exceed the measure indicated, he could legally transport similar goods for others over the same line and distance for a less sum, which discrimination was held not to be unjust, because the less favored shipper, who was obliged to pay the higher freight charges, had only liquidated the legal demand. 17 Am. & Eng. Enc. Law (2 ed.) 135; Story, Bail. § 508a; Wood’sRy. Law, § 197. It was. subsequently ascertained that the application of such a principle permitted the patronized consignors to undersell their business rivals to the extent of the discrimination in freight rates, thereby destroying the competition of others, and building up monopolies for- themselves, to prevent which laws were enacted, evidencing a growing popular sentiment against the doctrine first promulgated. In the absence of such legislation, however, the courts of last resort, when not committed by an opinion to the contrary have held that the carrier’s charges should not only be
“The English courts have said that at common law common carriers were bound to make reasonable, but not equal, charges, and that one of whom a fair compensation was exacted had no cause of complaint because another obtained a similar service for less. It is doubtful if this, really was the common law of England; certainly it, never was that of the United States. It is the settled American doctrine that, as common carriers exercise a public employment, they owe equal duties to all, and must make no unjust or injurious discrimination between different individuals in their rates of toll.” Bald. Am. R. R. Law, c. 35, § 1.
It is doubtful if the question here adverted to is involved, for neither the order of the Eailroad Commissioners, nor the decree confirming it, attempts to change in any manner the terms of the agreement relating to the transportation of passengers from Lents over the Mt. Scott division to or through the city of Portland. The contract rate of 5 cents, however, was taken as the basis of a reasonable compensation by which to measure the fare to be charged on the Oregon City division for an equal distance, and for conceding the same transfer privileges that are granted on the Mt. Scott division. The terms of the Lents contract probably prevent the plaintiff from charging as great a rate of fare on that division as is now collected on other lines operated by it outside the city limits, and the only way in which it can escape a violation of the provisions of Section 48 of the railroad commission law is by reducing the charges on such other lines to the same proportion as is received on the Mt. Scott division. In this particular only can it be said that the obligation of a contract is in any way affected by this act
Section 48 of the Railroad Commission law makes it an offense for any railroad company to collect for carrying one person more than it demands from another “for a like and contemporaneous service.” Though the clause of our statute from which the last-quoted excerpt is taken does not contain the expression “under substantially similar circumstances and conditions,” as is found in Section 2 of the interstate commerce law, it is asserted by counsel for plaintiff that such phrase is reasonably implied in our enactment in construing which it should be held that there can be no “like service,” unless it is for carriage over the same line, and hence any difference in charges for transporting persons over another branch of the plaintiff’s road is not prohibited or unjustly discriminatory. The legislative assembly of this State, in framing Section 48 of the Railroad Commission law, patterned it somewhat after Section 2 of the interstate commerce law, and it would seem that the phrase “under substantially similar circumstances and conditions” had been purposely omitted from our enactment. This act of Congress was designed to correct unjust discriminations in charges for the transportation of passengers and freight from one state or territory to another, while our law is applicable only within the State of Oregon. The great transcontinental railways of our country necessarily cross the Rocky Mountains, from the summit of which freight can be hauled in cars down grade to the Pacific Coast or to the Atlantic Ocean much cheaper than goods can be trans
“The estimate placed by a party upon the value of his own services of [or] property is always sufficient, against him, to establish the real value; but it has augmented probative force, and is almost conclusive against him, when he has adopted it in a long-continued and extensive course of business dealings, and held it out as a fixed and notorious standard for the information of the public.”
It will be remembered that the rate to Lents was established pursuant to the terms of an agreement, but it appears that the plaintiff voluntarily made a 5-cent fare on the Springwater division from Portland to Nickum, which latter place is .56 mile outside the city limits, and thereby manifested a preference for Nickum as against Milwaukie, which is 1.35 miles outside such boundary. The reason assigned in the brief of plaintiff’s counsel for such discrimination is that where the Springwater division crosses the city limits, the roadbed consists of, a high fill that extends east quite a distance to a deep cut, which latter continues beyond Nickum; that at the boundary no public highway exists by which passengers can approach
It follows from these considerations that the decree herein should be affirmed, and it is so ordered.
Affirmed.
Rehearing
On Petition for Rehearing.
[109 Pac. 273.]
delivered the opinion of the court.
Plaintiff justifies the lower charge to and from Lents to the terminus in the city of Portland, first, on the ground that it is prevented from charging each passenger more than five cents fare, because of the alleged contract between its predecessor and the. former owner of that portion of the road extending between Lents and Hawthorne Avenue. But this arises from the wrongful act of the plaintiff and its predecessor; that it, it had no lawful right or power, as was held in the main opinion, to thus bind the State or restrict it in its future regulation of fares. On account, however, of the forfeiture clause of this contract, it was doubtless considered by the commission that to order plaintiff, to increase the rate of its fare at Lents in order to avoid the discrimination complained of would cause it to hazard a greater loss than to lower the rate of fare at Milwaukie. It therefore chose the latter, and under the circumstances of the case we think it was justified in so doing, inasmuch as the forfeiture clause of the contract expires by limitation on April 30, 1911, after which time plaintiff will be free to act upon its own judgment in the premises, and so to arrange its schedule of fares as to avoid any. just complaint of discrimination.
It is also complained that the reduction of the rate from 10 to 5 cents at Milwaukie and from 15 to 10 cents at Oak Grove will entail upon plaintiff a considerable loss by compelling it to make equivalent reductions along the entire line to Oregon City. We do not think this necessarily follows, but, if it should, we are of the opinion that the consequences contemplated would result from the arbitrary manner by which plaintiff has divided its road into five-cent zones for regulating the amount of its charges, and for these reasons we think it ought not to be heard to complain.
The motion therefore will be denied.
Affirmed: Kehearing Denied.